Com. v. Harmer, S. (memorandum)

Annotate this Case

Download PDF

J-A18003-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEPHEN MICHAEL HARMER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1902 MDA 2013 Appeal from the Judgment of Sentence entered on October 2, 2013 in the Court of Common Pleas of Lancaster County, Criminal Division, No. CP-36-CR-0004640-2012 BEFORE: LAZARUS, WECHT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JULY 24, 2014 s from the judgment of sentence imposed following his convictions of one count each of murder of the second degree, robbery, and burglary, and two counts of criminal conspiracy (robbery and burglary). See 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 3502(a), 903. We affirm. their residence in Quarryville, Pennsylvania. Harmer, who was employed at Grace Tar Corporation, approached a co- J-A18003-14 In August 2012, Harmer, Cody, and Kyle gathered firearms, masks, Harmer repeatedly contacted Lisa to determine her whereabouts. Upon verifying that Lisa was not home, Harmer explained the layout of the home to Kyle and Cody, and indicated that Herr would be home if a truck was in the driveway. Harmer, complaining of an injured foot, stayed in the vehicle -gauge shotgun, a sledgehammer, and a pry bar. Kyle and Cody observed a truck in the driveway, but agreed to proceed with the plan. entered the home by smashing a glass sliding door. Kyle and Cody After Kyle and Cody found a safe in an interior room, Herr confronted them with a gun. Herr subsequently shot Cody in the leg. Kyle then struck Herr in the head with and placed it in another room. Thereafter, Kyle and Cody opened the safe by shooting the lock off with the shotgun. Kyle and Cody left the home with home, Cody collapsed on the porch. Cody told Kyle to go back into the o the home and shot Herr, who was lying unconscious on the floor, in the head at point blank range. Kyle, Cody, and Harmer drove away from the house. -2- Harmer went J-A18003-14 leg. Harmer later contacted Kyle and Cody to receive his share of the money. Kyle gave Harmer $30,000. Harmer, Cody, and Kyle were subsequently arrested and charged with various crimes. Following a jury trial, Harmer was convicted of the abovementioned crimes.1 The trial court sentenced Harmer to life in prison. Harmer filed a timely Notice of Appeal. The trial court ordered Harmer to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Harmer filed a timely Concise Statement and the trial court issued an Opinion. On appeal, Harmer raises the following questions for our review: I. Did the trial court err by failing to grant the Motion for Mistrial after the assistant district attorney committed prosecutorial misconduct during closing argument? II. Did the trial court err by giving an inadequate erroneous and/or prejudicial jury instruction on felony murder? Brief for Appellant at 4 (capitalization omitted). In his first claim, Harmer contends that the trial court erred by failing to grant a mistrial after the assistant district prosecutorial misconduct during closing argument. attorney committed Id. at 10. Harmer argues that the assistant district attorney stated to the jury that Cody and culpability as Cody and Kyle. me Id. at 10-12. 1 Harmer further argues that, We note that Kyle was convicted of, inter alia, murder of the first degree, and Cody was convicted of, inter alia, murder of the second degree. -3- J-A18003-14 while Harmer and Cody and Kyle were accomplices to the robbery and burglary, Harmer did not intend to kill anyone. asserts that the assistant district atto Id. at 11, 12. Harmer i.e., that Harmer shared the same level of culpability for killing Herr as Cody and Kyle through the felony-murder rule, was not an inference that could be reasonably derived from the evidence presented at trial. Id. at 11-12. Harmer claims that the statements had the effect of creating a bias and hostility toward Harmer, and that a true verdict could not have been rendered. Id. at 12, 13. Our standard of review is as follows: In criminal trials, the declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably Our review of the resulting order is constrained to determining whether the court abused its discretion. Commonwealth v. Hogentogler, 53 A.3d 866, 877-78 (Pa. Super. 2012) (citation omitted). [I]n reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial. -4- J-A18003-14 It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and In determining whether the prosecutor engaged in misconduct, we must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair. Id. at 878 (citation and paragraph breaks omitted). determined that they are without merit. See Trial Court Opinion, 2/7/14, at 4-8. We adopt the sound reasoning of the trial court for the purpose of this statements would have formed in the jury such a bias that would have prevented them from entering a fair verdict. See id. In his second claim, Harmer contends that the trial court provided an inadequate and erroneous jury instruction on felony-murder. Brief for Appellant at 13. Harmer argues that the trial court improperly instructed the jury with regard to the requirement that the Commonwealth must prove the killing was committed in furtherance of the underlying felony. Id. at 13-14. Harmer specifically asserts that the trial court included an explanation of -5- J-A18003-14 conspiracy lia Id. at 14-15. Harmer claims that the conspiracy instruction misled the jury into reasoning that, if the Commonwealth proved him guilty of conspiracy to commit robbery/burglary, it also proved felony-murder. Id. at 16. Harmer argues consider that the act of killing was done for reasons wholly independent of Id. at 17. Here, the trial court set forth th claims and determined that they are without merit. See Trial Court Opinion, 2/7/14, at 2-4. We adopt the sound reasoning of the trial court for the purpose of this appeal. See id. As an addendum, we note that Harmer argues that the killing of Herr was not in furtherance of the robbery and burglary, as Kyle and Cody had left the house with Herr unconscious, and Kyle returned to the house on see also N.T., 8/12/13, at 723stated that the evidence presented at trial demonstrated that the killing was not in furtherance of robbery or burglary).2 However, the jury was free to nsibly found that the killing was in furtherance of the robbery and burglary. See Commonwealth v. Henkel, 938 A.2d 433, 446 (Pa. Super. 2007) (noting that the fact2 Harmer conceded that he was a conspirator and accomplice to the robbery and burglary. N.T., 8/6/13, at 153. -6- J-A18003-14 believe all, part, or none of the evidence presented in judging the credibility -murder without merit. instruction accurately set forth the See Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa. new trial only where the charge permitted a finding of guilt without requiring the Commonwealth to establish the critical elements of the crimes charged Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/24/2014 -7- Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM Circulated 07/09/2014 02:50 PM

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.